2007
United States v. Schroder, 65 M.J. 49 (MRE 414(a)
provides that in a court-martial in which the accused is charged with
an offense of child molestation, evidence of the accused’s commission
of one or more offenses of child molestation is admissible and may be
considered for its bearing on any matter to which it is relevant).
(before admitting evidence of
other acts of child molestation under MRE 414, the military judge must
make three threshold findings: (1) that the accused
is charged with an act of child molestation as defined by MRE 414(a);
(2) that the proffered evidence is evidence of his commission of
another offense of child molestation; and (3) that the evidence is
relevant under MRE 401 and MRE 402).
(before admitting evidence of
other acts of child molestation under MRE 414, the military judge must
also conduct a MRE 403 balancing analysis, applying factors that
include: strength of proof of prior act --
conviction versus gossip; probative weight of evidence; potential for
less prejudicial evidence; distraction of factfinder; time needed for
proof of prior conduct; temporal proximity; frequency of the acts;
presence or lack of intervening circumstances; and relationship between
the parties).
(the definition of an offense
of child molestation in MRE 414(d)-(g) provides an exclusive list of
offenses that qualify as offenses of child molestation; thus, it does
not give the military judge the discretion to admit uncharged
misconduct in every case in which the accused has allegedly committed
indecent acts or indecent liberties with a child as those offenses are
defined in the MCM; the charged acts must fall within the specific
definition of an offense of child molestation set out in MRE 414).
(indecent acts specification
alleged an offense of child molestation within the meaning of the MRE
414 definition of such an offense, where that specification alleged
that the accused placed his hand upon the victim’s buttocks, placed his
hand upon her groin area, and grabbed her buttocks, notwithstanding the
fact that the specification also alleged two other acts that did not
fall within the definition -- placing his hand on the victim’s leg and
kissing her on the neck; those latter two acts were not within the MRE
414 definition for sexual acts or sexual contact).
(military judge did not abuse
his discretion in admitting other acts evidence under MRE 414 to prove
the charged acts of rape and indecent acts, where the military judge
made the required threshold findings and conducted a lengthy on-record
MRE 403 balancing analysis, and where there was direct evidence in the
form of eyewitness testimony by the victims that appellant had
committed the other acts of child molestation, there were no
significant intervening circumstances between the charged and uncharged
acts, and with all the victims, appellant had abused his position as a
father figure to take advantage of them).
(in child molestation case in
which other acts of child molestation were admitted, military judge was
not required to give an instruction distinguishing between the charged
acts that met the definition of offense of child molestation in MRE 414
and those in the charge that did not).
(in child molestation case,
military judge erred in his instruction as to how the members could
consider the MRE 414 evidence, where the instruction was susceptible to
an unconstitutional interpretation that the members were permitted to
conclude that the presence of similarities between the charged and
uncharged misconduct were, standing alone, sufficient evidence to
convict appellant of the charged offenses).
(where the members in a child
molestation case are instructed that MRE 414 evidence may be considered
for its bearing on an accused’s propensity to commit the charged crime,
the members must also be instructed that the introduction of such
propensity evidence does not relieve the government of its burden of
proving every element of every offense charged).
(in a child molestation case,
the factfinder may not convict on the basis of propensity evidence
alone).
(although MRE 414(a) provides
that evidence of uncharged misconduct may be considered for any matter
to which it is relevant, there is a risk with propensity evidence that
an accused may be convicted and sentenced based on uncharged conduct
and not the acts for which he is on trial; as a result, where MRE 414
evidence is admitted, there is a need for procedural safeguards to
delimit the use of such evidence; one such safeguard is to ensure that
trial counsel does not use such evidence to unduly inflame the members;
the MRE 414 safeguards could be undermined if trial counsel’s comments
were permitted to range outside the realm of legally relevant matters
and express a sense of outrage and injustice regarding the victims of
uncharged misconduct).
United States v. Bare, 65 M.J. 35 (MRE 414(a)
provides that in a court-martial in which the accused is charged with
an offense of child molestation, evidence of the accused’s commission
of one or more offenses of child molestation is admissible and may be
considered for its bearing on any matter to which it is relevant).
(before admitting evidence of
other sexual acts under MRE 414, the military judge must make three
threshold findings: (1) that the accused is charged
with an act of child molestation as defined by MRE 414(a); (2) that the
proffered evidence is evidence of his commission of another offense of
child molestation as defined by the Rule; and (3) the evidence is
relevant under MRE 401 and MRE 402; the military judge must also
conduct a MRE 403 balancing analysis, to which the following
nonexhaustive list of factors is relevant: strength
of proof of prior act -- conviction versus gossip; probative weight of
evidence; potential for less prejudicial evidence; distraction of
factfinder; time needed for proof of prior conduct; temporal proximity;
frequency of the acts; presence or lack of intervening circumstances;
and relationship between the parties).
(when projecting on a child
the mens rea of an adult or extrapolating an adult mens rea from the
acts of a child, military judges must take care to meaningfully analyze
the different phases of the accused’s development rather than treat
those phases as unaffected by time, experience, and maturity).
(the military judge in a
child molestation case did not abuse his discretion in admitting
evidence of uncharged, but similar molestation which occurred when the
accused, now in his thirties, was between sixteen and nineteen years
old, despite the accused’s contention that the military judge failed to
give adequate consideration to his young age at the time the uncharged
misconduct, where the military judge conducted a meaningful MRE 403
balancing analysis which considered factors weighing both against and
in favor of admission of the evidence, the misconduct occurred while
the accused was an adult as well as an adolescent, and the misconduct
occurred regularly for a period of about two or three years).
(MRE 414 was intended to
provide for more liberal admissibility of character evidence in
criminal cases of child molestation where the accused has committed a
prior act of sexual assault or child molestation).
United States v. Foster, 64 M.J. 331 (an expert may
testify about symptoms that are generally found among children who have
suffered sexual abuse and whether the child-witness has exhibited these
symptoms; an expert may also testify about patterns of consistency
generally found in the stories of victims as compared to patterns in
the victim’s story; however, there is a fine line between admissible
testimony in this area and testimony about a victim’s credibility or
its functional equivalent, which is not admissible).
(in a child sexual abuse
case, where the government expert’s testimony suggested that there was
better than a ninety-eight percent probability that the victim was
telling the truth, such testimony was the functional equivalent of
vouching for the credibility or truthfulness of the victim, and the
military judge erred in admitting it; the error was plain and obvious,
and it materially prejudiced the accused’s substantial rights where the
case hinged on the victim’s credibility and medical testimony;
accordingly, admitting this improper credibility quantification
testimony was plain error).
2006
United
States v. Barnett, 63 M.J. 388 (consent, as a
legal matter, and in the
context of adult relations, is a fact-specific inquiry that must be
made on a
case-by-case basis).
United
States v. James, 63 M.J. 217 (the propensity
evidence of similar crimes in
child molestation cases addressed in MRE 414 is admissible for offenses
committed both before and after the charged offense, if it is otherwise
relevant and admissible under MRE 401, MRE 402, and MRE 403; there is
no
temporal limitation on the admissibility of specific uncharged sexual
misconduct under MRE 414; in this case, MRE 414 authorizes admission of
appellant’s child molestation offenses committed after the charged
offenses of
child molestation).
(prior to 1996,
the admissibility of evidence
of uncharged misconduct in the military justice system was severely
restricted
by MRE 404(b); this rule allowed evidence of bad acts to be admitted
for
limited purposes, but the basic evidentiary rule excluded bad acts
solely to
show bad character and a propensity to act in conformance with that bad
character; in 1996, the rule against the admissibility of bad acts to
prove a
propensity to commit similar acts was turned upside down in cases
involving
violent sexual behavior or sexual offenses involving minors; Congress,
as a
part of the Violent Crime Control and Enforcement Act of 1994, enacted
Fed. R.
Evid. 413 and Fed. R. Evid. 414, rules that became applicable to
military
practice in 1996, and were formally adopted as MRE 413 and MRE 414 in a
1998
amendment to the MCM; these rules stated that in cases of sexual
assault or
sexual misconduct with a child, evidence of the commission of similar
offenses,
was admissible and may be considered for its bearing on any matter to
which it
is relevant; no exceptions were listed in the rules).
(as long as
appropriate safeguards are
applied, MRE 413 and MRE 414, rules of evidence allowing evidence of
similar
crimes in sexual assault and child molestation cases, are not limited
to
evidence of behavior taking place prior to that charged).
(Congress, in
enacting Fed. R. Evid. 413 and
Fed. R. Evid. 414, and the President in adopting MRE 413 and MRE 414,
have
decided that evidence of other acts of sexual misconduct is admissible
to show
a propensity to engage in that type of sexual misconduct; so-called
propensity
evidence is therefore relevant in cases of sexual assault or child
sexual
molestation; there is no reason to conclude that prior misconduct is
probative and
subsequent misconduct is not; it is the fact of the other act that
makes it
probative, not whether it happened before or after the act now charged;
the
rules of relevance therefore do not require a temporal limitation on
the
application of MRE 413 and MRE 414; however, in the application of the
MRE 403
balancing, temporal factors may be important).
(in interpreting
MRE 404(b), CAAF has joined
the prevailing federal practice, which does not limit “other” in acts
under
Fed. R. Evid. 404(b) to “prior” acts; it now continues down that road
and
concludes that the “one or more offenses” language of MRE 413 and MRE
414 is no
more temporally restrictive than the “other crimes” language of MRE
404(b)).
(the military
judge did not abuse his
discretion in ruling that the propensity evidence relating to
appellant’s similar
misconduct for child molestation that occurred after the charged
conduct was
admissible and not unfairly prejudicial where the military judge was
concerned
about undue prejudice, was meticulous in his application of the
balancing
required by MRE 403, and limited the scope of the admissible propensity
evidence).
(military judges
dealing with objections to
propensity evidence proffered under MRE 413 or MRE 414 should make a
record of
their application of MRE 403).
2005
United
States v. Berry, 61 M.J. 91 (inherent in MRE 413 is a general
presumption
in favor of admission; however, it is a constitutional requirement that
evidence offered under Rule 413 be subjected to a thorough balancing
test under
MRE 403 where its probative value is balanced against its prejudicial
impact;
where that balancing test requires exclusion of the evidence, the
presumption
of admissibility is overcome).
(to admit evidence under MRE 413, three threshold determinations must
be
made: (1) the accused is charged with an offense of sexual
assault; (2)
the evidence proffered is evidence of the accused’s commission of
another
offense of sexual assault; and (3) the evidence is relevant under the
evidence
rules governing relevance, MRE 401 and 402).
(once the evidence meets the threshold requirements of MRE 413, a
military
judge must apply the balancing test of MRE 403 under which the
testimony may be
excluded if its probative value is substantially outweighed by the
danger of
unfair prejudice, confusion of the issues, or misleading the
members).
(evidence of a prior uncharged sexual
assault by an
accused involving a younger victim satisfied the relevance prong of the
threshold test for the admission of uncharged sexual assault in a case
where
the accused was charged with forcible sodomy of a victim who was drunk,
as it
has some tendency to make it more probable that the accused committed a
nonconsensual act against a vulnerable person).
(a military judge erred in admitting
evidence of an
uncharged sexual act between the accused and another victim that
occurred eight
years earlier than the charged forcible sodomy when the accused was
thirteen
and the other victim was six; although the evidence was relevant, it
failed the
balancing test after consideration was made of its probative weight,
the
frequency of the acts, the temporal proximity of the prior act and the
presence
of intervening circumstances, and the distraction of the factfinder
which might
result in a distracting mini-trial on a collateral issue).
(the length of time between the events alone is generally not enough to
make a
determination as to the admissibility of MRE 413 testimony; the
circumstances
surrounding the individual and the events that transpired in the
intervening
period must be taken into consideration; where an accused was an adult
at the
time he committed the prior sexual assault, this court has found
incidents
occurring more than eight years prior to the charged incident to be
relevant
under MRE 413; a similar finding is not readily made where a prior
incident is
between children or adolescents).
(where a military judge finds that the prior “sexual assault” acts of a
child
or adolescent are probative to an act later committed as an adult, such
a
determination must be supported in the record by competent evidence).
2004
United
States v. Banker, 60 MJ 216 (MRE 412, the rape shield
evidence
rule precluding admission of evidence of the sexual history of sexual
assault
victims, was intended to safeguard the alleged victim against the
invasion of
privacy and potential embarrassment that is associated with public
disclosure
of intimate sexual details and the infusion of sexual innuendo into the
fact-finding process; by affording victims protection in most
instances, the
rule encourages victims of sexual misconduct to institute and to
participate in
legal proceedings against alleged offenders; MRE 412 was intended to
protect
victims of sexual offenses from the degrading and embarrassing
disclosure of
intimate details of their private lives while preserving the
constitutional
rights of the accused to present a defense).
(MRE
412 is not
limited to nonconsensual sexual offenses, but applies to proceedings
involving
alleged sexual misconduct; following the 1998 amendments to MRE 412,
the
applicability of MRE 412 hinges on whether the subject of the proffered
evidence was a victim of the alleged sexual misconduct and not on
whether the
alleged sexual misconduct was consensual or nonconsensual).
(in
the trial of
the accused for sexual misconduct involving a 14-year-old babysitter,
the
proffered testimony of the accused’s son that the babysitter sexually
molested
him fell within the scope of MRE 412 because the babysitter was a
victim of the
accused’s sexual misconduct where due to her age, she was not capable
of
legally consenting, notwithstanding any factual consent).
(the
purpose of
the MRE 412 rape shield law is to protect alleged victims of sexual
offenses
from undue examination and cross-examination of their sexual history;
MRE 412
is a rule of exclusion; MRE 412 is broader in its reach than its
federal
counterpart; under MRE 412, not only is evidence of the alleged
victim’s sexual
propensity generally inadmissible, evidence offered to prove an alleged
victim
engaged in other sexual behavior is also generally excluded).
(there
are three
exceptions to MRE 412; first, evidence of specific instances of sexual
conduct
is admissible to prove that a person other than the accused was the
source of
semen, physical injury, or other physical evidence; second, evidence of
specific instances of sexual behavior by the alleged victim with the
accused
may be offered to prove consent; and third, evidence the exclusion of
which
would violate the constitutional rights of the accused is also
admissible).
(in
order to
overcome the exclusionary purpose of MRE 412, an accused must
demonstrate why
the general prohibition in MRE 412 should be lifted to admit evidence
of the
sexual behavior of the victim; in particular, the proponent must
demonstrate
how the evidence fits within one of the exceptions to the rule; in
light of the
important and potentially competing constitutional and privacy claims
incumbent
in MRE 412, the rule requires a closed hearing to consider the
admission of the
evidence; among other things, the victim must be afforded a reasonable
opportunity to attend and be heard at this closed hearing).
(based
on the
evidence presented at the closed hearing held under MRE 412, the
military judge
applies a two-part process of review to determine if the evidence is
admissible; first, pursuant to MRE 401, the judge must determine
whether the
evidence is relevant; evidence is relevant if it has any tendency to
make the
existence of any fact more probable or less probable than it would be
without
the evidence; where the military judge determines that evidence is
relevant,
the judge employs a second analytic step by conducting a balancing test
to
determine whether the probative value of such evidence outweighs the
danger of
unfair prejudice; the accused has a right to put on testimony relevant
to his
theory of defense; however, the right to present relevant testimony is
not
without limitation; the right may, in appropriate cases, bow to
accommodate
other legitimate interests in the criminal trial process).
(although
a
two-part relevance-balance analysis is applicable to all three of the
enumerated exceptions to MRE 412, evidence offered under the
constitutionally
required exception is subject to distinct analysis; while the relevancy
portion
of this test is the same as that employed for the other two exceptions
of the
rule, if the evidence is relevant, the military judge must then decide
if the
evidence offered under the constitutionally required exception is
material and
favorable to the accused’s defense, and thus whether it is necessary;
in
determining whether evidence is material, the military judge looks at
the
importance of the issue for which the evidence was offered in relation
to the
other issues in this case, the extent to which this issue is in
dispute, and
the nature of the other evidence in the case pertaining to this issue;
after
determining whether the evidence offered by the accused is relevant and
material, the judge employs the MRE 412 balancing test in determining
whether
the evidence is favorable to the accused’s defense; while the term
favorable
may not lend itself to a specific definition, this Court believes that
based on
Supreme Court precedent and the Court’s own rulings in this area, the
term is
synonymous with vital).
(although
the
MRE 412 balancing test bears resemblance to the MRE 403 balancing test,
the two
tests are distinct; the balancing test contained in MRE 412 differs in
two
critical respects from that contained in MRE 403; first, under the MRE
403
balancing test, a presumption of admissibility exists since the burden
is on
the opponent to show why the evidence is inadmissible; MRE 403 is a
rule of
inclusion; in contrast, MRE 412 is a rule of exclusion; the burden of
admissibility shifts to the proponent of the evidence to demonstrate
why the
evidence is admissible; second, MRE 403 is generally applicable to
evidence
offered by either the government or the accused; to exclude evidence
under MRE
403, the military judge must find substantial prejudice leading to one
of a
number of enumerated harms, including unfair prejudice to the accused;
MRE
412’s general rape shield rule is applicable to both parties; however,
in
contrast to MRE 403, the balancing test that MRE 412 establishes for
exceptions
to the general rule contemplates evidence that the accused seeks to
offer;
thus, MRE 412 requires the military judge to determine on the basis of
the
hearing that the evidence that the accused seeks to offer is relevant
and that
the probative value of such evidence outweighs the danger of unfair
prejudice;
it would be illogical if the judge were to evaluate evidence offered by
the
accused for unfair prejudice to the accused; rather, in the context of
the rape
shield rule, the prejudice in question is, in part, that to the privacy
interests of the alleged victim; as a result, when balancing the
probative
value of the evidence against the danger of unfair prejudice under MRE
412, the
military judge must consider not only the MRE 403 factors such as
confusion of
the issues, misleading the members, undue delay, waste of time,
needless
presentation of cumulative evidence, but also prejudice to the victim’s
legitimate privacy interests).
(MRE
412 does
not wholly supplant MRE 403 since the military judge may exclude
evidence on
MRE 403 grounds even if that evidence would otherwise be admissible
under MRE
412).
(MRE
412 applies
not only to propensity evidence, but also to evidence of the victim’s
other
sexual behavior; MRE 412 is intended to shield a victim from having
their own
sexual conduct and history placed at issue, unless the military judge
first
determines in the closed hearing that such inquiry is warranted by the
rule).
(in
applying MRE
412, the judge is not asked to determine if the proffered evidence is
true; it
is for the members to weigh the evidence and determine its veracity;
rather,
the judge serves as gatekeeper deciding first whether the evidence is
relevant
and then whether it is otherwise competent, which is to say, admissible
under
MRE 412; while evidence of a motive to fabricate an accusation is
generally
constitutionally required to be admitted, the alleged motive must
itself be
articulated to the military judge in order for him to properly assess
the
threshold requirement of relevance).
(in
the trial of
the accused for sexual misconduct involving a 14-year-old babysitter,
the
military judge did not abuse his discretion in refusing on relevancy
grounds
pursuant to MRE 412 to admit the testimony of the accused’s son that
the
babysitter sexually molested him; at trial, defense counsel stated only
that
his son’s testimony went directly to the babysitter’s credibility and
motive to
fabricate; the defense failed to articulate a specific theory or motive
as to
why the babysitter might have fabricated the allegations against the
accused;
this proffer was not adequate to support the theory advanced on appeal
that the
babysitter fabricated the allegations against him in order to
preemptively
discredit any allegations that his son might ultimately have made
regarding the
babysitter’s sexual conduct with him; in the context of MRE 412, it was
within
the judge’s discretion to determine that such a cursory argument did
not
sufficiently articulate how the testimony reasonably established a
motive to
fabricate; moreover, based on the analytic structure of MRE 412, in
ruling on
relevancy, the military judge was not also required to address the
constitutional exception or the application of the balancing test;
therefore,
without more, it was within the discretion of the military judge to
conclude
that the offered testimony was not relevant; the military judge did not
abuse his
discretion in refusing to admit the son’s testimony because the accused
did not
meet his burden of proving why the MRE 412 prohibition should be
lifted).
2001
United
States v. Bailey, 55 MJ 38 (in balancing under
Mil. R.
Evid. 403, the military judge did not abuse his discretion by admitting
prior
forcible acts of sodomy with others as propensity evidence (see Mil. R.
Evid.
413) where that judge considered the following factors in conducting
the
balancing test: proximity; similarity to the charged event; the
rate of
frequency of the other acts; surrounding circumstances, relevant
intervening
events; and other relevant similarities or differences).
(military judge did not abuse his discretion by admitting prior
forcible
acts of sodomy with others as propensity evidence (Mil. R. Evid. 413);
in
reviewing the trial judge’s Mil. R. Evid. balancing test, the court
considered
the following factors which were supported by the record:
temporal
proximity; similarity to the event charged; frequency of the acts;
presence of
lack of intervening circumstances; the strength of proof of the act;
the trial
time needed for proof of the prior act; distraction to factfinder;
potential for
less prejudicial evidence; and that probative weight of the evidence).
United
States v. Dewrell, 55 MJ 131 (military judge’s
careful and
reasoned analysis on the record satisfied the constitutional
requirement that
evidence offered under Mil. R. Evid. 413 be subjected to a thorough
balancing
test pursuant to Mil. R. Evid. 403).
(evidence of uncharged other sexual misconduct was properly admitted
where: (1) the threshold findings were met under Mil. R. Evid.
413; (2)
the evidence was found to be relevant to the immediate charged under
Mil. R.
Evid. 401 and 402; and (3) the military judge clearly found that the
probative
value of specific portions of the testimony outweighed any prejudicial
effect,
as required under Mil. R. Evid. 403).
2000